The Virginia court of appeals has ruled in the case of Yelp v. Hadeed Carpet Cleaning, that Yelp must divulge identifying information it has about seven people who posted negative reviews about Hadeed Carpet Cleaning.

Does this mean every time a company does not like a negative review it can file a lawsuit and issue a subpoena to find out who made the review?  No.  That would certainly squelch many negative reviews, and thus put a chill on those wanting to exercise their First Amendment Rights anonymously without fear of retaliation from the business.  This ruling may end up having that effect, but this is what the court said.

Anonymous speech is protected by the First Amendment.  This rule applies on the Internet.  The First Amendment thus protects a person’s right to speak anonymously, and to remain anonymous even though someone disagrees with what they said.

The right of free speech, including the ability to remain anonymous, is not absolute.  Defamatory statements, which by definition are false, are not protected by the First Amendment.   There are also lesser free speech rights when the subject is a commercial matter, as contrasted with political or religious speech.

In Virginia, for a business to issue a subpoena unmasking an anonymous person, it must file a lawsuit, show a good faith basis that a tort has likely been committed, and provide notice to the anonymous person that a subpoena about them has been issued (the website is required to notify the user) so that they can respond and defend themselves anonymously.

Hadeed Carpet Cleaning claimed the reviewers were not actual customers.   It was not able to identify the reviewers from its records.  If they are not actual customers then the reviews would be defamatory.  One of the requirements for posting a review on Yelp is that the person be an actual customer of the business.

Since Hadeed needs the names to proceed with its defamation lawsuit, a subpoena was necessary.  The court agreed and ordered Yelp to turn over the information.

Bottom line: a business needs more than just disagreement about a review to be able to find out who posted the review.

Ironically, Yelp itself has sued those making false reviews.  Yelp helps itself to the private information about its users – the same type of information Hadeed Carpet Cleaning wanted to use to pursue its defamation claim.



Filed under: Internet Law

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